Citation Nr: 1803625 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-08 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, to include degenerative disc disease, degenerative joint disease, and arthritis, claimed as a neck condition. 2. Entitlement to service connection for a thoracolumbar spine disorder, to include degenerative disc disease and arthritis, claimed as a back condition. REPRESENTATION Appellant represented by: David Anaise, Attorney ATTORNEY FOR THE BOARD E. Vample, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1972 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, AZ. In April 2017, the Veteran was scheduled to testify before a Veterans Law Judge. However, the Veteran cancelled his Board hearing. As such, the Veteran's request for a hearing is deemed withdrawn. See 38 U.S.C. § 20.703 (2017). FINDINGS OF FACT 1. The Veteran's cervical spine disorder is not related to military service. 2. The Veteran's thoracolumbar spine disorder is not related to military service. CONCLUSION OF LAW 1. The criteria for service connection for a cervical spine disorder, to include degenerative disc disease, degenerative joint disease, and arthritis, claimed as a neck condition, have not been met. 38 U.S.C. §§1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for a thoracolumbar spine disorder, to include degenerative disc disease and arthritis, claimed as a back condition, have not been met. 38 U.S.C. §§1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veteran's Claims Assistance Act VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C.§ 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA examinations are associated with the claims file. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Service Connection The Veteran is claiming entitlement to service connection for a neck condition, diagnosed as degenerative disc disease, degenerative joint disease, and arthritis of the cervical spine. He is also claiming entitlement to service connection for a back condition, diagnosed as degenerative disc disease and arthritis of the thoracolumbar spine. The law provides that service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §3.303(a) (2017). In general service connection requires (1) evidence of in-service incurrence or aggravation of a disease of injury; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009). Certain chronic diseases, including arthritis, may be presumed to have occurred in service if manifested to a degree of 10 percent within one year of service discharge. 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Based on the evidence as detailed below, entitlement to service connection for cervical and thoracolumbar spine disorders is not warranted. First, the Board notes that the service treatment records in 1976 reveal recurrent lower back pain. The medical provider diagnosed the Veteran with a mild lumbar strain after the Veteran reported striking his tailbone on rocks in August of 1976. However, the Veteran's August 1976 separation examination was silent on any complaints or injuries of the cervical or thoracolumbar spine. Next, he post service evidence does not reflect symptoms related to a neck and back disorder until many years after the Veteran left active duty service. The Veteran first reported symptoms of tightness in his neck in a September 2001 examination after involvement in a motor vehicle accident. However, an X-ray revealed no damage. During the examination the Veteran denied bone, joint pain, and a history of arthritis. Furthermore, the examiner noted that the Veteran's gait was within normal limits and he had full range of motion appropriate for his age. Therefore, continuity since service is not established based on the clinical evidence of record. As part of this claim, the Board recognizes the statements regarding the Veteran's history of symptoms. In this regard, while the Veteran is not competent diagnose a disorder such as a spinal disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he and others are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, the Board determines that the Veteran's reported history of continued symptomatology is insufficient by itself to warrant service connection. In addition to the fact that no pertinent symptoms were mentioned at his separation physical examination, no medical records exist showing that he sought treatment for either disorder until many years after discharge. Although he has presented his own testimony, he has not provided any medical or lay evidence corroborating his assertion that he has suffered from these disorders for the years prior to his decision to file for service connection. Therefore, continuity is not established based on the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between the Veteran's claimed disorders and either his active duty or a service-connected disability. In this case, the Board finds that the weight of the competent evidence is against such a nexus. The Veteran alleges that he injured his back when he was in the Air Force after being attacked by locals who wrestled him to the ground and kicked him in the neck and back. He was seen in the emergency department following the incident in August 1976 and x-rays were taken. The Veteran was diagnosed with multiple contusions, abrasions and soft tissue damage. However, it does not appear the injuries suffered during this incident are related to his current spinal conditions. The Board notes that there are no treatment records reflecting that the Veteran's spine disorders are related to active duty, nor has any physician indicated that such a relationship exists. The Veteran was afforded a VA examination in July 2013. The examiner compared the findings of the Veteran's MRI of the cervical spine with MRI examinations from February 2007 and May 2011. Multilevel degenerative changes were again demonstrated and small central posterior disc protrusion was more apparent at C3-C4. The examiner noted no significant spinal stenosis and mild diffuse posterior verbal disc bulge present at C4-C5. An x-ray view of the Veteran's cervical spine revealed moderate to significant degenerative disease from C5-C7. An x-ray of the Veteran's thoracic spine revealed age-appropriate bone mineralization and mild degenerative changes within the midthoracic spine. Additionally, the examiner found moderate degenerative disc disease at L5-S1 and mild degenerative spondylosis of the lumbar spine. The July 2013 VA examiner opined that the Veterans cervical and lumbar spine conditions were less likely than not incurred in or caused by the in-service jury, event, or illness. The examiner explained that a review of the file reveals few entries within a short period of time regarding the assault and the description of the injuries do not reference neck or back pain. Additionally, the examiner noted that the Veteran was given one day of quarters to recover, which would indicate mild injuries. Furthermore, the examiner opined that the Veteran's degenerative changes of the entire spine were most likely age related and unrelated to the Veteran's mild lumbosacral strain diagnosed in August of 1976. The Board notes the opinion of the Veteran's representative, who is trained as a physician, and opined that it is as least as likely as not that the Veteran's cervical and lumbar osteoarthritis were at least as likely as not due to injuries incurred during service. In support of his opinion, he cites to medical research from the Institute on Surgical Research that shows that soldiers are especially susceptible to osteoarthritis after discharge from the service and may manifest many years after initial injury. The medical literature states that arthritis was recognized as a disabling condition on average of 19 +/- months after injury and a diagnosis of arthritis had an average time from less than two years from injury to determine disability as a result from arthritis. However, the Veteran's first post-service complaint of symptoms related to a neck and back disorder weren't until 2001, which was 25 years after the Veteran left active duty service. Therefore, as the opinion is based on an argument that is factually unsupported in this case, the Board finds that the opinions of the VA examiners to be of greater probative weight. In adjudicating these claims, the Board has specifically considered the statements made by the Veteran relating his claimed disorders to service. The Veteran has stated that his current disabilities are due to injuries sustained in an attack where he was wrestled to the ground and kicked in his neck and back. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony as to the etiology of his back and neck disorders is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4. To the extent that the Veteran's statements in this regard are competent, the Board finds the specific, reasoned opinions of the trained health care professionals who conducted the VA examinations to be of greater probative weight than the Veteran's more general lay assertions. For the foregoing reasons, the Board finds that the weight of the competent evidence does not reflect a nexus between the Veteran's spine disorders and his military service. In reaching the above conclusion, the Board also considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable in this case. 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a cervical spine disorder, to include degenerative disc disease, degenerative joint disease, and arthritis, claimed as a neck condition is denied. Service connection for a thoracolumbar spine disorder, to include degenerative disc disease and arthritis, claimed as a back condition is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs